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Editor: Christine A. Corcos
Louisiana State Univ.

Monday, May 8, 2017

Merges on What Kind of Right Are Intellectual Property Rights? @BerkeleyLawNews

Robert P. Merges, University of California, Berkeley, School of Law, is publishing "What Kind of Rights Are Intellectual Property Rights?" in Oxford Handbook of IP Law (R. Dreyfuss and J. Pila, eds., Oxford U.P.) (forthcoming). Here is the abstract.

Are intellectual property rights (IPRs) really rights? And if so, what kind of rights? Most importantly, what difference does it make that they are rights – what practical import does this carry? These are the questions I take up in this Chapter, which is forthcoming as part of The Oxford Handbook of Intellectual Property Law (Rochelle C. Dreyfuss & Justine Pila, eds., forthcoming 2017). I begin by clearing up some misunderstandings about legal rights. The primary one is that rights are absolute. A secondary one is that one need do nothing to obtain or exercise a right, and that therefore any legal entitlement that requires affirmative steps to secure cannot be a right. Next I consider a prominent critique of the idea that IP rights are property rights, which holds that they are more akin to government regulation. After that I turn to an enumeration of the details of IP rights, described in the terms laid down by the prominent theorist of legal relations, Wesley Newcomb Hohfeld. From this I distill the key attributes of property as it applies to IP rights: 1. It is ‘good against the world’ – no prior contract or other legal relationship is required to create a duty on the part of third parties to respect the right; 2. It defines uses of an asset that are under control of the owner; it demarcates what is ‘in’ and ‘out’ of the owner’s ambit of authority; 3. It is broadly transferable; yet the owner retains residual rights over those aspects of the right that are not transferred. In addition, it includes a special form of quasi-transfer power, in that it permits the owner alone to decide whether and when to enforce the right. Taking up the theme of IP as a (non-absolute) form of property, I then consider three key limits. IPRs are: 1. Contingent; they are subject to government processes to acquire or enforce, such as perfection, approval, maintenance, and the like; 2. Time-limited; most IP rights have specified terms, and even those that do not will usually lapse at some time; 3. Bounded in scope; the class of assets the IP rights cover is subject to boundaries drawn with more or less precision. None of these limits is enough to disqualify IP from being property. But altogether they impose significant restrictions on the strength or power of an IP right. After these general points, two special problems then draw my attention: injunctions in IP law and constitutional takings of IP rights. Finally, I conclude with some observations about why, when properly framed, engaging in ‘rights talk’ about IP does not inexorably point to absolutist views. Throughout I emphasize two highly consistent thoughts: IP rights are real rights; but they are limited rights. They dominate some interests but not all, and they are subject to restrictions and limitations that third parties sometimes hold as rights also.

Download the essay from SSRN at the link.

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